Congressional Power: Excluding States From Federal Laws?

Federal law supersedes state law, but the Supreme Court can overrule Congress if it passes laws outside of its constitutional authority. The Constitution recognises that the government is barred from infringing on certain rights, and the 9th Amendment gives Congress the power to enumerate further rights by passing laws. Congress can pass laws, and everyone is subject to them.

Federal law supersedes state law

Congress can pass laws, and everyone is subject to them. For example, Congress can't say "States can't make abortion laws", but it can say "Abortion is legal/not legal". The drinking age was not implemented by the Federal government, but by a funding restriction in highway funds. This would be found unconstitutional by the Supreme Court today. Marijuana is illegal federally, but legal in half the states, and this only functions because the federal government declines to interfere.

Congress cannot pass laws outside of their constitutional authority

The Constitution recognises that the government is barred from infringing on certain rights. For example, Congress cannot pass laws that prohibit the free exercise of religion, abridge the freedom of speech or the press, or prevent the right of the people to assemble and petition the government.

While federal law supersedes state law, the Supreme Court can say that Congress was out of line and unable to pass laws outside of their constitutional authority. For example, the drinking age was not implemented by the Federal government but was a funding restriction in highway funds that would today be found unconstitutional.

The 9th Amendment gives Congress the power to enumerate further rights by passing laws, and those rights are incorporated in the states by the 14th Amendment.

Congress can pass laws that apply to everyone

Congress is not allowed to make laws respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Congress can pass laws banning states from passing certain laws. For example, Congress could pass a law saying "Abortion is legal/not legal", rather than saying "States can't make abortion laws".

There have been proposals for a 28th Amendment to the US Constitution, which would state: "Congress shall make no law that applies to the citizens of the United States that does not apply equally and exactly to the Senators and Representatives, and a law that applies to the Senators and Representatives that does not apply equally and exactly to the citizens of the United States".

The 9th Amendment gives Congress the power to enumerate further rights by passing laws

Federal law supersedes state law, but the Supreme Court can say that Congress was out of line and unable to pass laws outside of their constitutional authority. Congress can pass laws, and everyone is subject to them. For example, Congress can't say "States can't make abortion laws", but they can say "Abortion is xyz (legal/not legal)".

In United Public Workers v. Mitchell (1947), the U.S. Supreme Court held that rights contained in the 9th or 10th amendments could not be used to challenge the exercise of enumerated powers by the government. In the literature that developed, much of the controversy concerned the original meaning of the phrase “rights . . . retained by the people”. Since the 1980s, four rival interpretations of this phrase emerged. Russell Caplan claimed that it referred to rights that were granted by state laws, which could be then be preempted by federal laws under the Supremacy Clause. Thomas McAffee contended that the Amendment referred to those “residual” rights that are not surrendered by the enumeration of powers. From this, it followed that, if Congress is exercising its enumerated powers, it cannot be violating a retained right.

Congress cannot pass laws that prohibit the free exercise of religion or abridge the freedom of speech

Federal law supersedes state law, but the Supreme Court can say that Congress was out of line and unable to pass laws outside of their constitutional authority. Congress can pass laws, and everyone is subject to them. The First Amendment to the U.S. Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances". This means that Congress cannot pass laws that prohibit the free exercise of religion or abridge the freedom of speech. The First Amendment was passed by Congress on September 25, 1789, and ratified on December 15, 1791, as part of the Bill of Rights. The Establishment and Free Exercise Clauses were ratified as part of the Bill of Rights in 1791. The 9th Amendment gives Congress the power to enumerate further rights by passing laws, and those rights are incorporated in the states by the 14th Amendment. The 14th Amendment has also been interpreted by the Supreme Court to apply the First Amendment's provisions to the states.

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